David A. Plymyer: Political, Social & Random Commentary

Opinion: No Way to Select Our Judges.

Democracy can be messy, but Maryland’s method of selecting circuit court judges is unnecessarily so. The process also is largely dysfunctional. The controversial, albeit successful, campaign run this year by Judge Mark Crooks of the Anne Arundel County Circuit Court is a case in point.

Judges are appointed to the circuit court by the governor from a list of applicants screened by the judicial nominating commission for that judicial circuit. Once a judge is appointed, the judge must stand for election to secure a full 15-year term. Unlike district and appellate court judges, circuit court judges run in contested elections rather than in “retention” elections in which no other candidates appear on the ballot.

Crooks is a Republican and was serving as Gov. Larry Hogan’s deputy legal counsel when the governor appointed him to a newly-created seat on the circuit court in November 2016. Crooks was required by the Maryland Constitution to run for election this year to stay on the bench.

This year’s circuit court race was unusually partisan, perhaps because it coincided with a gubernatorial election. Crooks had the active support of the Republican establishment, including the governor and Anne Arundel County Executive Steve Schuh.

That partisanship first tripped up Crooks in May 2017 when he appeared to endorse Republican county council candidate Nathan Volke. The flier for a campaign event for Volke stated that Crooks and Register of Wills Lauren Parker “cordially invite you to a happy hour reception supporting Nathan E. Volke.”

Under the Maryland Code of Judicial Conduct, circuit court judges running for election may attend fundraisers and other events for candidates for non-judicial offices but may not publicly endorse them. Crooks stated that he was unaware of and had not approved the flier. The judicial code of conduct generally requires a candidate to “act at all times in a manner consistent with the independence, integrity, and impartiality of the judiciary and maintain the dignity appropriate to judicial office.” It is a worthy standard, sometimes honored in the breach.

The Volke flier dust-up was nothing compared to one that occurred in September 2017 when Crooks attended a fundraiser for Roy Moore in Severna Park. The notorious former chief justice of the Alabama Supreme Court was running for the United States Senate at the time. Crooks later claimed that he was unaware of Moore’s background before attending the fundraiser.

Judge Crooks told The Arundel Patriot that “I didn’t do my homework to know what he was all about, even remotely.” Crooks’ plea of ignorance was not universally accepted.

Moore was removed as chief justice of the Alabama Supreme Court in 2003 for refusing to obey a federal court order instructing him to take down a monument to the Ten Commandants that he had installed in the state judiciary building. The people of Alabama again elected Moore chief justice in 2013.

He was suspended from his position in 2016 and later resigned after instructing state probate court judges that they could refuse to apply the decision of the United States Supreme Court compelling states to recognize same-sex marriages. Both acts of defiance of federal law were widely reported by the national media.

In a 2005 interview, Moore stated that homosexual conduct should be illegal. He wrote in a 2006 column that Muslims should not be allowed to serve in Congress because of their faith. In other words, by the time he announced his run for the Senate in April 2017 Moore had gained quite a reputation.

Moore’s close ties to the League of the South, which is based in Alabama and generally considered to be a white nationalist organization, touched a raw nerve in Anne Arundel County. About 30 percent of the people in Anne Arundel County identify themselves as black, Hispanic, Latino or Asian. All 17 judges and magistrates on the circuit court are lily-white.

I tend to agree with the comment made by the editorial board of the Annapolis Capital: Although the fundraiser that Crooks attended for Moore took place before Moore’s sexual predations became general knowledge, “Moore [had] been a polarizing figure for two decades and anyone who attended should have realized their appearance would be controversial.”

I wrote a guest column for The Capital in which I stated that a sitting judge who attended a fundraiser for a former chief justice of a state supreme court who had been openly contemptuous of the rule of law while in office should not retain his seat. The reaction was swift and predictable.

There never is a shortage of practicing lawyers willing to write letters to the editor in support of a sitting judge before whom they appear, and such was the case for Judge Crooks. Some of the letter writers were sincere; some undoubtedly were not and were completely self-serving. This is another unbecoming aspect of judicial elections. To me, it seems rather like the members of President Trump’s cabinet singing his praises on “Fox & Friends.”

I was accused of being too harsh on Crooks, among other things. I admit that my column was tough on him. Based on what is going on with the Trump administration, however, I have developed zero tolerance not only for the public officials who violate the rule of law but also for other public officials who enable or legitimize them. That goes double for judges.

The tenor of the letters to the editor responding to my guest column and defending Judge Crooks paled in comparison to the emails that I received from Bruce Bereano, the prominent and hard-charging Annapolis lobbyist whom I have known for about 40 years. He informed me that he was helping Crooks with the election and “urged him to go to all political events.”

Bereano stated that Crooks was unaware of Moore’s background and “at worst an innocent and unintended mistake was made.” Bereano also saw fit to tell me what he thought of me: “You should be absolutely ashamed of yourself and I know from talking to people in the community, you have damaged your reputation and people have less respect for you, if any at all.” He added in a second email: “You have lost a lot of friends in the community. You should hear people talking about you as I have. I am done with you.”

That is what hardball partisan politics looks like. I am not sure that it is what a judicial election should look like. Bereano was disbarred from the practice of law in Maryland in 2000 following a federal mail fraud conviction. He did nothing wrong by offering his services to Judge Crooks and, to my knowledge, Crooks violated no specific rule by accepting them. In my opinion, however, a sitting judge should not get help with his campaign from a disbarred lawyer when running for judicial office. By doing so, Crooks created another unfortunate appearance that he would have been better off without. Judge Crooks may have prevailed, but his campaign left a sour taste in the mouths of many Anne Arundel County voters.

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Whether voting in a contested election or a retention election in Maryland, voters must make decisions whether sitting judges should be kept on the bench. If you thought that the judiciary therefore would want to make sure that voters have the information necessary to make informed decisions, you’d be wrong.

In a state in which openness, transparency and accountability in government is given a low priority, the judicial branch is no exception. Unlike many states, Maryland has no formal program for evaluating judicial performance.

In 1998, a select committee of Maryland judges and lawyers recommended that the state adopt a mandatory evaluation program run by the Administrative Office of the Courts. The proposal went nowhere then and is no closer to being implemented now.

The lack of a program for evaluating judicial performance in Maryland is disgraceful. And, if you are interested in the criminal sentences imposed by circuit court judges, forget about any easy way to find out the sentencing patterns of individual judges. Although the information is collected by the Maryland Commission on Criminal Sentencing Policy, it is not made available to the public or the media in a searchable database.

Consequently, voters are left to glean information as best they can. Judicial candidate forums are practically useless because candidates are restricted by the code of conduct mentioned above both from discussing their views on matters that could come before them and from making promises about positions on issues that could compromise their impartiality on matters that may come before them.

There must be a better way to select circuit court judges. Everyone has their ideas, and here is mine: Adopt a program of judicial performance evaluation and make the results public. It has proven to be an uphill battle to amend the constitution to eliminate contested elections, so just tweak the constitution to add another two years to the time when a judge appointed by the governor must stand for election.

The change would allow voters to consider a judge’s performance evaluations over the course of three or four years on the bench before deciding for whom to vote. And it would allow sitting judges to run on their records rather than glad-hand voters at fundraisers for disgraced former state supreme court justices.

— David A. PlymyerDavid A. Plymyer is a former county attorney in Anne Arundel County. He can be reached at dplymyer@comcast.net. Twitter: @dplymyer

[Published as guest commentary by Maryland Matters on August 7, 2018 but not posted to my blog until October 25, 2018. The date of posting that appears above was backdated to place all posts in the order in which they were written.]